Citation Nr: 1402152
Decision Date: 01/15/14 Archive Date: 01/31/14
DOCKET NO. 11-21 970 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma
THE ISSUE
Entitlement to an initial compensable disability rating for basal cell carcinoma, left eyelid.
REPRESENTATION
Appellant represented by: Oklahoma Department of Veterans Affairs
ATTORNEY FOR THE BOARD
Roya Bahrami, Associate Counsel
INTRODUCTION
The Veteran served on active duty from November 1968 to March 1969, and from January 1991 to April 1991, with additional periods of service in the Army National Guard up until September 1999.
This matter comes before the Board of Veterans' Appeals (Board) from an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, that granted service connection for basal cell carcinoma, left lower eyelid with an evaluation of 0 percent.
The Veteran requested a hearing before a Veterans Law Judge at the RO. A videoconference hearing was scheduled in January 2013. However, according to the Veterans Appeals Control and Locator System (VACOLS) the Veteran cancelled his hearing request. As such, the Veteran's hearing request has been withdrawn. See 38 C.F.R. § 20.704(e).
The Board notes that, in addition to the paper claims file, there is a paperless, electronic claims file (Virtual VA). The Board has reviewed the contents of the Virtual VA file in addition to the paper file in deciding this claim.
FINDING OF FACT
The Veteran's basal cell carcinoma of the left lower eyelid did not result in a scar that contained a characteristic of disfigurement; the Veteran's scar is not unstable or painful upon examination; the Veteran's scar does not cause limitation of function; and the Veteran's skin malignancy did not require therapy that is comparable to that used for systemic malignancies, X-ray therapy more extensive than to the skin, or surgery more extensive than wide local excision.
CONCLUSION OF LAW
The criteria for an initial compensable rating for basal cell carcinoma have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.7, 4.14, 4.27, 4.87, 4.118, Diagnostic Codes (DCs) 7800, 7803-7805, 7818 (2008).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Duties to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012).
Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002); C.F.R. § 3.159(b)(1) (2011). Pelegrini v. Principi, 18 Vet. App. 112 (2004).
In a claim for increase, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).
The Veteran was provided with a notification letter in October 2008 that fully addressed all notice elements and was sent prior to the initial RO decision in this matter. The letter informed the Veteran of what evidence was required to substantiate the claim, of his and VA's respective duties for obtaining evidence, and of the criteria for assigning disability ratings and assigning effective dates.
The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R.
§ 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4).
The duty to assist has also been met here. The Veteran's service records and private treatment records have been obtained. The Veteran was afforded adequate VA examinations in April 2010 and August 2012. Both the examiners reviewed the claims file, considered the contentions of the appellant, and provided supporting rationales for the conclusions reached. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Lastly, there is no indication that there is any relevant evidence outstanding in these claims. Therefore, the Board will proceed with consideration of the Veteran's appeal.
II. Analysis
The Veteran asserts that he is entitled to a compensable disability rating for his basal cell carcinoma, left lower eyelid.
Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2011); see also Mauerhan v. Principi, 16 Vet. App. 436 (2002).
The primary concern in a claim for an increased evaluation for service-connected disability is the present level of disability Staged ratings are to be considered for assigning initial ratings downstream of grants for service connection, beginning from the effective date of service connection, as in this case with the claim for hemorrhoids. Fenderson v. West, 12 Vet. App 119 (1999).
The Veteran's service-connected basal cell carcinoma, left eyelid is evaluated under DC 7818. DC 7818 provides that malignant skin neoplasms (other than malignant melanoma) are rated as disfigurement of the head, face, or neck (DC 7800), scars (DCs 7801, 7802, 7803, 7804, or 7805), or rated on impairment of function. DC 7800 pertains to scars on the head, face, or neck, which includes the Veteran's left lower eyelid scar. 38 C.F.R. § 4.118. The Board finds that DC 7801 and 7802 are not applicable because they pertain to scars other than head, face, or neck.
The Board notes that changes have recently been made to 38 C.F.R. § 4.118, DC 7800-7805. These changes apply only to applications for benefits received on or after October 23, 2008, which is after the Veteran's September 5, 2008 claim. However, under typical circumstances, a veteran who is rated under DCs 7800 to 7805 before October 23, 2008, may request review under the amended diagnostic codes, irrespective of whether the Veteran's disability has increased since the last review, but in no case will the revised award be effective before October 23, 2008. There is no indication that the Veteran made such a request. The Board will therefore address the Veteran's claim under the pre-2008 rating criteria.
Under DC 7800, an 80 percent evaluation is warranted with visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with six or more characteristics of disfigurement; a 50 percent evaluation is warranted with visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with four or five characteristics of disfigurement; a 30 percent evaluation is warranted with visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with two or three characteristics of disfigurement; and a 10 percent evaluation is warranted with one characteristic of disfigurement.
The 8 characteristics of disfigurement, for the purpose of evaluation under §4.118, are: Scar 5 or more inches (13 or more cm.) in length; scar at least one-quarter inch (0.6 cm.) wide at widest part; surface contour of scar elevated or depressed on palpation; scar adherent to underlying tissue; skin hypo-or hyper-pigmented in an area exceeding six square inches (39 sq. cm.); skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.); and underlying soft tissue missing in an area exceeding six square inches (39 sq. cm.). Unretouched color photographs must be taken into consideration when evaluating under these criteria. 38 C.F.R. § 4.118, DC 7800 (prior to October 23, 2008).
Under DC 7803, a 10 percent rating is warranted for superficial and unstable scars. Under DC 7804, a 10 percent rating is warranted for scars that are superficial and painful on examination. Under DC 7805, other scars are rated on limitation of function of the affected part.
Relevant notes pertaining to these regulations provide: (1) A deep scar is one associated with underlying soft tissue damage; (2) A superficial scar is one not associated with underlying soft tissue damage; (3) An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar.
A note to DC 7818 provides that, if a skin malignancy requires therapy that is comparable to that used for systemic malignancies, i.e., systemic chemotherapy, X-ray therapy more extensive than to the skin, or surgery more extensive than wide local excision, a 100-percent rating will be assigned from the date of onset of treatment, and will continue, with a mandatory VA examination six months following the completion of such antineoplastic treatment, and any change in rating based upon that or any subsequent examination will be subject to the provisions of 38 C.F.R. § 3.105(e). If there has been no local recurrence or metastasis, rating will then be made on residuals. If treatment is confined to the skin, the provisions for a 100-percent rating do not apply. 38 C.F.R. § 4.118.
The Veteran underwent surgery to remove basal cell carcimoma of the lower eyelid in April 2005. He filed a claim in September 2008, and was afforded a VA examination in connection with his claim in April 2010. At the examination, the Veteran reported no radiation treatment or chemotherapy in relation to his surgery. The Veteran also reported no: wound infection from the surgery; pain, redness, swelling, or tenderness on the scar; skin breakdown; vision changes; nor any functional limitations secondary to scar. Examination revealed a 1.5 cm long by .1cm wide well-healed surgical scar below the left lower eyelid below the medial canthus. The examiner noted that the scar was stable, superficial, and slightly hyperpigmented. The scar was not tender and there was no adherence to underlying tissue. The texture of the skin was normal. There was no: elevation or depression of the surface contour; inflammation, edema, or keloid formation; induration or inflexibility of the skin in the area of the scar; limitation; nor any skin breakdown or disfigurement from the scar.
After the Veteran sought an initial increased rating for his service-connected basal cell carcinoma, he received a VA examination through QTC Medical Services in August 2012. Examination revealed that the scar was not painful or unstable, and that there was no elevation, depression, adherence to underlying tissue, or missing underlying soft tissue. Also, there was no abnormal pigmentation or texture of the face, no gross distortion or asymmetry of facial features or visible or palpable tissue loss. The examiner noted no functional loss, nor any systemic manifestations due to any skin diseases. The examiner also noted that the Veteran had not been treated with oral or topical medications in the past 12 months. The examiner found that the Veteran has a malignant neoplasm, and that there were no residual conditions or complications due to the neoplasm or its treatment.
The Board has considered photographs of the Veteran's basal cell carcinoma of the left lower eyelid, which accompany his August 2012 VA examination report. These photographs show the Veteran's scars to be as described in detail in the VA examination report.
After consideration of the relevant evidence, the Board finds that there is no basis to award a compensable rating for the Veteran's service-connected basal cell carcinoma, left lower eyelid, under DC 7800, 7803-7805, or 7818. First, the Veteran's scar does not contain at least one characteristic of disfigurement sufficient to warrant a 10 percent rating under DC 7800. Second, a 10 percent rating is not warranted under DC 7803 and 7804 because the Veteran's scar is not unstable or painful upon examination. Third, the Veteran's scar does not cause limitation of function, which is necessary to warrant a 10 percent evaluation under DC 7804. Finally, a 100 percent evaluation under DC 7818 is not warranted because the Veteran's treatment has been confined to the skin.
Further, there is no basis to refer the ratings assigned for the Veteran's scars for extraschedular consideration. Ordinarily, the Schedule will apply unless there are exceptional or unusual factors, which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993).
According to the regulation, an extraschedular rating is warranted upon a finding that "the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b)(1) (2012).
The Veteran has submitted no evidence showing that his service-connected skin disability has markedly interfered with his employment status beyond that interference contemplated by the assigned evaluation, and there is also no indication that the disability has necessitated any periods of hospitalization during the pendency of this appeal. As such, the Board is not required to remand this matter to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1) , which concern the assignment of extra-schedular evaluations in "exceptional" cases. See Thun v. Peake, 22 Vet. App. 111 (2008).
ORDER
An initial compensable disability rating for basal cell carcinoma, left eyelid, is denied.
____________________________________________
J. A. MARKEY
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs